An Experienced Houston Family Law Attorney Protecting Your Rights

I am attorney Leonard Roth, and I have been serving clients in Houston and the surrounding communities since 1972. I am certified as a family law specialist by the Texas Board of Legal Specialization, as well as being a qualified mediator, qualified family mediator and qualified collaborative divorce attorney. I offer the dedicated legal counsel and support you need during this emotional time.

Divorce: No one enters into a marriage expecting it to end. However, the sad fact is that over 50 percent of marriages end in divorce. I also know that o ver 95 percent of all contested cases are settled before trial in mediation or in collaborative divorce or attorney-based negotiations.

If a case must be tried, so be it. That is what I trained for and why I am a specialist in family law. However, only rarely is it in the client's best interests to go to trial in a case. It makes sense to me, before going headlong into armageddon, to explore all reasonable avenues to resolve the matter before lives are destroyed and estates decimated. What is the value of freedom . . . your property . . . your children?

Another important fact is that at the time of marriage, you have love and a contract. When a couple files for divorce, the love is gone and only the contract remains. Unless you have come into my office with a spreadsheet with the division of your assets and debts and a complete parenting plan signed off on by both parties, you should assume that the trust and love and fairness that brought you and your spouse together is now gone and that you are now in charge of your and your children's financial and emotional destiny, with no assistance from Mr. or Mrs. Wonderful. He or she has moved on. I am certainly not saying that the family matter cannot be fairly resolved. I am saying that you should be wary because the dynamics have forever changed. Failure to realize that there has most likely been a monumental change between the two of you can be disastrous, as he/she is now looking out for his/her own best interests. It is true that on occasion the parties come to realize the unfairness of their respective stances and look at the big picture and for purposes of settlement return to a posture that recollects the good you once had together (if there was good) and, sometimes there is reconciliation. While I am unqualified to recreate the love lost, I can assist clients in focusing on the real and the attainable in their divorce case. If a prospective client show signs that he or she is not ready for divorce, in consultation, I provide them with the information they need to make an intelligent decision regarding their next action. I believe in marriage and have been married for 40 years. I do not counsel divorce or push clients in a direction they are not personally committed to pursuing.

My goal is to get you through this very difficult time, answering questions and clarifying the confusing and, often frustrating aspects of the process. I am a lawyer who is here to help, rather than make the situation more adversarial, litigious and expensive. In order to ensure that you have the financial support or legal protections in place to protect your interest, I can request that the court issue temporary restraining orders (TROs), and after a hearing, temporary orders to initiate support payments or parenting time rights.

Child custody: A divorce is a difficult situation for two adults to handle, but it is much more complicated when children are involved. I concentrate on helping families preserve their relationships with a minimum amount of emotional damage to the parties and the children. This, of course, is more commonly a by-product of collaborative divorce, but with effort and cooperation, a semblance of necessary relationships can be preserved in litigation. But, in the normal litigation, it is far less prevalent. My training in collaborative divorce makes that possibility more likely. Understanding that it may be my job in litigation to destroy the other party, to weaken his or her credibility before the court, and show him or her to be a bad person or parent goes a long way to destroying those bridges between you and your soon-to-be ex-spouse. This, of course, is not necessarily the scenario, but normal litigation requires both sides to enter the trenches of battle.

This, of course, is more commonly a by-product of collaborative divorce, but with effort and cooperation a semblance of necessary relationships can be preserved in litigation, but it is far less prevalent.

Child support: In Texas, determining child support in a divorce is more or less a mathematical process. State law provides charts and formulas that dictate how much child support you are entitled to receive or obligated to pay. The statutes also provide for factors that can alter these mathematical determinations to a degree, but, you must request the court to take the factors into account in the calculation, and the court may or may not agree that the factor is relevant and important to the degree you have argued. With over four decades of experience, I can explain how Texas child support guidelines work and what you should expect.

Suit Affecting the Parent-Child Relationship (SAPCR): Because both a mother and father contributed in their own way to the conception of the child, both biological parents may have equal general parental rights. However, those general rights are insufficient to keep the other parent from taking the child from you. You need LEGAL rights to have enforceable rights, if one party fails to abide by the agreement. The issue of child support is not always so easy, particularly when paternity (parentage) is contested. In order for parental rights to be enforceable in these situations, a parent must file an original SAPCR action and get a court order clearly laying out your rights.

Post-divorce spousal support: Post-divorce spousal maintenance, or post-divorce support, in Texas, is nothing like alimony in other states. Texas spousal maintenance was originally enacted as an anti-welfare statute. It provides possible, minimal payments for a possible limited time to help a non-working spouse get trained and into the workforce to earn enough money to cover their minimum needs. If you get a job, the person paying the post-divorce support can petition the court to reduce the maintenance payment. I can help you determine whether spousal support will be at issue in your divorce and what to expect and what not to expect. Remember . . . this is Texas, where alimony was unconstitutional from the beginning of the Nation of Texas, to the State of Texas, to 1995, when the Maintenance statute was enacted.

Please note, Texas courts hardly ever award spousal maintenance for the maximum time. In 2011, the long-awaited change to the maintenance statute occurred and, depending on your position in the scenario, made it much more attentive to the present-day realities of length of marriage and financial needs of an ex-spouse, or, on the other side, excessively Draconian. So, here is what the legislature did to the Maintenance statute, in part:

Now, the max amount of monthly maintenance has increased from $0 to $2,500 per month to $0 to $5,000 per month.

The maximum duration is now based on years of marriage and potential years of payments, which started at 0-3 years under the old statute and now is:

Marriage less than 10 years: no maintenance, unless the spouse is incapacitated with a mental or physical disability to the extent that she/he is unable to meet that ex-spouse's minimum, monthly, reasonable needs and expenses

If this is the case, the maintenance can last for as long as the incapacitating physical or mental disability exists.

Marriage for 10, but not more than 20 years: maximum duration of payments — 5 years

Marriage for 20 years, but not more than 30 years: maximum duration of payments — 7 years

Marriage for 30 years or more-maximum duration of payments — 10 years

However, the statute goes on to require that the court shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse's minimum reasonable needs, unless the ability of the spouse to provide for the spouse's minimum reasonable needs is substantially or totally diminished because of physical or mental disability of the spouse seeking maintenance; the duties as the custodian of an infant or young child of the marriage interferes with employment; or another compelling impediment to earning sufficient income to provide for the spouse's minimum reasonable needs occurs. The court may order maintenance for a spouse to whom the aforesaid detriments to employment applies, for as long as the spouse continues to satisfy the eligibility criteria prescribed by the applicable provision.

Yet, as before, on the request of either party or on the court's own motion, the court may order the periodic review of its order for maintenance under this section of the statute and the continuation of an award under this provision is subject to a motion to modify.

The amount of maintenance cannot be more than the lesser of $5,000 or 20 percent of the spouse's average monthly gross income, and gross income includes:

(A) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);

(B) interest, dividends and royalty income;

(C) self-employment income;

(D) net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including non-cash items such as depreciation); and

(E) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes regardless of the source, gifts and prizes, maintenance and alimony;

and, does not include:

(A) return of principal or capital;

(B) accounts receivable;

(C) benefits paid in accordance with federal public assistance programs;

(D) benefits paid in accordance with the Temporary Assistance for Needy Families program;

(G) Supplemental Security Income (SSI), Social Security benefits and disability benefits; or

(H) workers' compensation benefits.

The amount that an obligor is ordered to pay in a maintenance order is to provide for the minimum reasonable needs of the ex-spouse, considering employment or property received in the dissolution of the marriage or otherwise owned by the ex-spouse that contributes to the minimum reasonable needs of the ex-spouse.

For those veterans among us, Department of Veterans Affairs service-connected disability compensation, Social Security benefits and disability benefits, and workers' compensation benefits are excluded from maintenance, and ''gross income'' is further defined by Sections 154.062(b) and (c), disregarding any deductions listed in Section 154.062(d) and disregarding those benefits excluded under Subsection (c) of that statute.

Furthermore, if you are able-bodied, the courts expect you to steadfastly and diligently look for work and document it for presentation. Failure to do this will result in a denial of spousal maintenance. Even if you do get a job, the ex-spouse paying the maintenance can ask the court for a reduction in the amount paid. Courts are getting used to awarding maintenance, but formal alimony, like every other state in the Union, which takes a look at an ex-spouse's prospective earnings and awards some of those prospective earnings to the ex-spouse, may be a long way off. Maintenance is a complicated subject, so if it applies in your case, we certainly will discuss the statutes' applicability to your case and the chances of you having to pay maintenance or of you receiving maintenance.

Property division: In Texas, the characterization of property as separate, community or mixed can be a battleground between divorcing spouses. Many of these issues are further complicated in high asset divorce cases when one spouse owns significant separate property, a business formed before and/or during the marriage, substantial stock acquired before and/or during the marriage, or real estate holdings acquired before and/or during the marriage. The division of retirement funds acquired before and/or during the marriage and pension benefits can also be contentious or confusing, depending on whether a plan is ERISA compliant, creating the need to file a Qualified Domestic Relations Order (QDRO). I can help you determine your separate property rights, if any and try to get that separate property confirmed by the court, and maximize your share of the community property.

Reimbursement: In a Texas marriage, there are several property estates: the husband's separate property, the wife's separate property, the community property of the husband and wife, and the mixed property (property that is community and separate) of the husband and wife. If one estate benefits another, then the estate making the contribution is entitled to make a request for a reimbursement during the divorce settlement or at trial. The amount of the reimbursement is driven by the character (separate or community character) of the estate making the contribution, and as always, equity, or the legal equivalent of fairness, that can apply during all things SAPCR, but only rarely in issues of property.

Child support / child custody modification: Initially, the Texas court that signed the decree or order creating the right or obligation in parent-child relationship issues has the exclusive, continuing jurisdiction to modify, clarify and enforce its own decree or Suit Affecting the Parent-Child Relationship (SAPCR) order concerning child custody (conservatorship), visitation (possession and access) and child support/medical support. You will have to go back to that court to modify that order, unless the facts have changed to the extent that original court is willing to relinquish that exclusive, continuing jurisdiction. I can help you attempt to modify existing orders or help you attempt to protect the rights you acquired in the initial order.

If you violate a court order in this area, you can be incarcerated for up to six months in jail or a $500 fine for EACH ACT OF CONTEMPT. This is very serious business. And moms, this applies to you, too. If Mr. Wonderful does not pay child support and/or medical support, you MUST still abide by the possession and access terms of the decree or order. Even if you believe for whatever reason that your child will be harmed by the non-custodial parent, you must turn that child over to the other parent UNTIL you get another ORDER signed by that court, allowing you to not turn the child over. This will take considerable evidence, as the general idea is that each parent should have the maximum amount of time allowed by law to see their child or children. On Enforcement actions that I have filed and prosecuted for clients, I have seen both Moms and Dads taken into custody for considerable periods of time. So it is clear, if you miss 3 child support payments or periods of possession and access, you can be sentenced to jail for up to a year and a half (six months times 3) and be made to pay $1,500 in fines ($500 times 3). Simple multiplication. Considerable time and expense.

Parental Relocations: Over four decades ago, when I started on this legal odyssey, there was no issue of relocation. Custodial parents (Sole Managing Conservators [SMC] — full custody) could freely move whenever and wherever they wanted. The other parent, the Possessory Conservator [PC]), had virtually no rights in place to stop the exit. As one might expect, custodial parents abused this legal gift by omission. Eventually there was outrage and angry picketing of courthouses, and the legislature finally heard the wails. The Texas legislature eventually approved an idea from the land of fruits and nuts (California), Joint Managing Conservatorship (JMC), and everything changed for the better. If the non-custodial parent is a very bad person for some reason, you can still request and get an SMC-PC, but JMC is presumed to be in the best interests of the child, the paramount mantra of Texas SAPCR cases. Around that time, the Standard Possession Order (SPO) was created, giving non-custodial parents specific enforceable rights of visitation (possession and access) to their children. Today, if a parent intends to relocate, he or she is obligated to notify their ex-spouse of their intent to move. Then, the non-moving parent can request a post-divorce modification. If the parental relocation is approved by the court, a modification order with a new parenting plan must signed by the court to establish how parenting time will be structured, and, who will pay for the increased costs of the non-custodial parent to see the child or children. If the non-custodial parent moves, he may bear the entire cost of his possession and access. For the last 10 or 12 years, relocation has been the hot-button issue at the annual Advanced Family Law Seminar.

Prenuptial and postnuptial agreements: Marriage is love (or should be love) and a contract. Once the love is gone, all you have left is the contract before marriage or after marriage to avoid all those very strict rules as to community property and other pesky laws of the state of Texas. Contracts before marriage (prenuptial) and after marriage (postnuptial or a partition and exchange agreement) can save the parties a lot of frustration, time and money in the event of a divorce. Please understand that these documents can be very complex in terms of drafting and in terms of emotion and the sturdiness of the foundation of the marriage. But, these contracts — especially the prenuptial agreement — are the only way you can protect what you want to protect in the case of the break-up of the marriage. Yes, you still have the postnup, but those are usually very hard to get unless there is a financial reason for both spouses to want it.

Once you utter those fate-filled words, "I do," followed closely by someone in authority saying, "I now pronounce you..." whether in Texas or wherever your destination wedding is, if your residence is in Texas, the laws of Texas instantly apply until you are divorced (the decree is signed by the court and you are declared to be divorced). There are no separation agreements in Texas. Separation in Texas (which means you are not living together as husband and wife [not having sexual intercourse]) does nothing with respect to property and debts. You continue to acquire community property and debts until you are divorced. It is surprising to me, even after all these years, that people in Texas get married without a speck of knowledge of the laws and constitution and rules of the state of Texas's impact on their lives, in the event of divorce. These are unalterable rules that apply to everything acquired during the marriage... unless you have a valid prenup.

These documents must be very artfully drafted and very carefully executed (signed) to be enforceable when and if a divorce occurs. Due Process of Law must be preserved. You cannot do this yourself. Definitely in this case, and usually at other times, the adage, "if you represent yourself in a legal matter, you have a fool for a client", is true. I can draft a prenuptial agreement that protects your property rights in the event of marital dissolution. But, please understand that no matter how well the agreement is drafted, the other side can challenge it in court. There are many reasons for the opposing party to do this seemingly meaningless act...but we can discuss those, if you come in for an agreement of this type. If you wish to simplify your estates after marriage, I can assist you in drafting a partition and exchange (postnuptial) agreement. If the document is enforceable, the court will enforce it and your legal action will be dramatically less costly and, possibly, less traumatic.

Collaborative Divorce: Collaborative Divorce is a process that allows the parties in a family law dispute to resolve their case outside of the courthouse without the trauma and expense associated with the adversarial system. Collaborative Divorce is truly divorce with dignity and intelligence. It is a procedure that is beyond wonderful when it works, but it is not for every case and every person. Collaborative Divorce in not inexpensive, but compared to the costs and trauma of a fully litigated case through trial, the cost of a case settled within collaborative divorce is minimal, perhaps 1/10th the cost of the fully litigated case.

Grandparents' rights: Understandably, most grandparents want to be involved in the lives of their grandchildren. Many grandparents had positive experiences raising their own children, and their children agree with that personal parenting assessment. Many grandparents want to continue being a source of unconditional love and support for their family, but a child of those parents with children may disagree, and then legal struggles may occur. Rights for Grandparents is a fairly recent phenomenon. Several statutes can impact on these rights known colloquially by the following acronyms: the PKPA (Parental Kidnapping Prevention Act), the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), and one very important United States Supreme Court case, Troxel vs. Granville, which applied to the Washington state law on grandparent access. Texas came very close to being swooped up in the maelstrom of that case, which gutted the statute in Washington, as the Texas statute was broad, but luckily not as broad as Washington's law. Grandparents typically may join an action between the parents (intervention), or even start an independent action, for the purpose of obtaining a court order for visitation with grandchildren, though the intervention method is clearly the best method procedurally.

The difficult issue is that a biological parent should have unfettered rights to raise their children without interference from others, unless the biological parent is not a good parent. Unless you as a grandparent actually, voluntarily get rights to possession and access (visitation) with the grandchildren (there must be a court order that is enforceable), you will find yourself in a very adversarial lawsuit with your child. You can intervene into a pending case and try to get visitation rights, and that is the only way for a grandparent to get custody of the grandchild or grandchildren on a showing that the children will be harmed in the biological parents' possession and that it is in the best interests of the child or children to be with you. It is a tough and traumatic case and at the end, you will have no relationship with your child, if you win, or with that child and the grandchildren, if you lose. If you are being unfairly denied access to your grandchildren or believe their parents are unfit, I can help explain what you can expect to achieve.

Paternity (parentage): Raising a child on your own is very expensive and very difficult. Since there always is another parent of the child to assist in the financial expenses of the child, many times they have to be shown to be the father of the child and through that parentage testing flows child support, if and only if the test proves that he is the biological father of the child. The possible father should run for the test because he may not want a child, but he may be the father of a child and he should want to know absolutely if he is the father before accepting the financial obligations of parenthood. At least twice a week, every week, I get a call from a man who has been paying child support and medical support for years and he wants to know if he is the father of the child. Yes, it is definitely ironic, but also ignorant to pay a debt for almost 20 years and then ask if it is your child. Yes, you may just know the child is yours, but thinking it is so may not be so. Yes, if you tell the mother that you want a parentage test, it will make her mad as it is a challenge to her morality and integrity. No, you do not know absolutely that you are the only man she had sex with. This obligation is for at least 18 years, but, possibly longer, and you can be incarcerated for years for failing in any way on paying your child support or medical support. I believe it is all in the way you ask for the test to prove that you are the parent. You should be certain that you are the father. Their mother (who knows if there are others that might be the father) should also agree to the test, or be ordered by the court to allow this test to occur by bringing the child to the test, as ordered. Nevertheless, there were two parents responsible for making the child, which means there are two parents responsible for raising it. So, finding the father of the child, proving he is the biological father of the child and assigning obligations to that father is very important societally and financially, to eliminate children from the welfare rolls or from unnecessarily impoverished lives. Ironically, until very recently, it was always easy to tell who the mother was to the child: The mother was the one that gave birth to the child. That was it. End of the story.

But about 10 years ago, I had a case where a woman client and her husband donated the egg and sperm and had that concoction inserted into a surrogate mother, a mere vessel in this case, to give birth to the child, as the woman client could not carry a child to full term. The surrogate had no biological connection to the child, but under Texas law at that time, she was the mother of the child. Under Texas law at that time, the surrogate could have left the hospital with the child and gone to Kabul, Afghanistan. At that time, surrogacy contracts were illegal in Texas, but this contract was made in Ohio where it was legal and the birth was in Kingwood, Texas. Both the biological parents and the surrogate and her family lived in the same subdivision. The transfer went smoothly, but the real issue was getting an original birth certificate in the biological parents' name. The state of Texas insisted on having the surrogate and her husband and the biological father on the original birth certificate (if that does not say something about the state of the state of Texas, I do not know what does). The state was technically and legally correct, but they missed a setting and I got a like-minded judge to sign off on what my clients wanted to do. The state was not happy; I did not care. Just something to think about: what if the surrogate used her eggs and a donor from the sperm bank? What then?

Under today's statutes, surrogacy contacts are legal in Texas and the surrogate is not the mother, regardless. Texas has entered the 20th Century. But also, there are issues beyond the financial: the important, heart-rending parental issues created by the birth of a child. I can help you understand your rights, legal obligations and options throughout the paternity (parentage) process.

Department of Family and Protective Services (DFPS), formally known as Child Protective Services (CPS): (I will use the previous name, CPS, in this website) Sometimes, acting with the best of intentions, Child Protective Services removes children from a horrifically terrible home and saves them from death or worse, and on occasion, removes children from loving homes, therein unnecessarily dragging families through court and ruining otherwise healthy relationships and family finances. The cost associated with these cases are very significant for many reasons. I can help you address the effects of having Child Protective Services in your life. But, CPS is the state of Texas… and they know it. I work with clients to help them get through the process, but, understand that however it is resolved, Pandora's Box has been opened, many times from a call from an anonymous source.

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